Monday, February 12, 2018

Workers' Compensation Cases on Appellate Review: “Substantial Evidence” and “Not Contrary to the Overwhelming Weight of the Evidence”

            In a new article, A Tale of Two Standards: Why Wyoming Courts Should Apply the Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, 18 Wyoming Law Review 1 (2018), Professor Mike Duff investigates an odd phenomenon of the Wyoming Supreme Court surrounding its proper standard of review.

            In this regard, the court uses, seemingly on an interchangeable basis, the phrases “substantial evidence” and “not contrary to the overwhelming weight of the evidence,” in characterizing its review function. Duff characterizes the Wyoming conceptualization of “substantial evidence” review as that which is familiar to us from federal administrative law, that is, that if, after whole record review, evidence is present that a reasonable mind might consider sufficient to support a fact, then the court will sustain the same.  But with workers’ compensation cases, the court will also say that it must uphold decisions by adjudicators as long as “deemed ‘not contrary to the overwhelming weight of the evidence.’” Duff asserts that in practice, the high court, having adopted this formulation, is extremely (and overly) deferential to the fact-finder. Indeed, he suggests that a review of certain cases suggests that the court is undertaking “any evidence” review – and is not undertaking substantial evidence review at all.

            Duff criticize this regime on a number of grounds. He first undertakes some good old-fashioned sleuthing and discovers that the court, some years ago, adopted this formulation from a chapter of the encyclopedia American Jurisprudence (AmJur). That text equated “substantial evidence” and “not contrary to the overwhelming weight,” but on the authority of two very weak cites. The book, notably, has since abandoned this approach. Meanwhile, the only state court which also applies the phrase (Missouri) actually uses it not as a mandate of extreme deference but, instead, one to accommodate increased scrutiny of fact-finding. Finally, the Wyoming legislature, with its 1979 amendment to its APA, has indicated that substantial evidence review is supposed to mirror the federal example. And, of course, the whole philosophy of that regime (now over a half-century old), is increased scrutiny of fact-finding to ensure that the agencies of the administrative state do not abuse their power.

            Cleaving to a more deferential standard – which isn’t meaningfully supported by precedent in the first place – makes no sense to the author. He recommends that the court overrule its precedent which adopted the overwhelming weight standard or, in the alternative, explain the precise difference to the bar and the public.

            In any event, Duff asserts that extreme deference is inappropriate in the workers’ compensation context, where the dispute being resolved by the administrative agency is over an essential right – that is, the right, however modified, to recover for one’s personal injury at the hands of another.

            Professor Duff’s article (along with a helpful abstract) can be read here:

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